I Have a Great Idea, Can I Protect It?

In order to be patentable, your invention must be new, useful, non-obvious and include patentable subject matter. Two of these four criteria are simplistic in nature and easy to understand, while the other criteria are more complex. Each of these criteria will be discussed in more detail below:

  • New – in order to be considered new, your invention must be something that nobody else has ever done. From a prosecution stand point, an Examiner must not be able to find a single patent that describes your invention. Simple, right? It is, but it is important to note that the Examiner can look worldwide in search of what you have described.
  • Useful – does your invention serve a purpose? Does it solve a problem? If you can answer yes to these questions then your invention is considered to be useful.
  • Non-Obvious – this is where things start to get a little tricky. When reviewing a patent application to determine obviousness, an Examiner will attempt to find two or more patents from anywhere in the world that can be used together to describe all of the features of your invention. If these patents can be combined to “create” your invention, then your invention would be considered to be obvious.
  • Patentable Subject Matter – in general, patentable subject matter includes tools, machines, compositions of matter, processes, and improvements on existing inventions. However, there are also several types of subject matter that are not considered patentable, these include scientific principles and abstract theorems, higher life forms, methods of medical treatment and methods that require professional skills to complete. The specific coding for software is also not considered to be patentable subject matter and is instead protected under copyright law. There are many grey areas in patent law when it comes to what is considered patentable subject matter, it is highly recommended that before you make any conclusions based upon this criteria that you speak to a patent agent who can provide an opinion based upon the case law available.